Five Recent Cases You Should Know About (1/28/2011)

Larson's Spotlight on Illegal Alien, Exclusive Remedy, Average Weekly Wage, Ex Parte Communication, Medicare Set-Aside. Larson's surveys the latest case developments that you need to know about. Thomas A. Robinson, the staff writer for Larson's Workers' Compensation Law, has compiled the list below.

TX: Deceased Worker's Status as Illegal Alien Was Not Relevant For Purposes of Computing Damages in Wrongful Death Action Against Employer

A Texas appellate court recently determined that a deceased worker's status as an illegal alien was not relevant and evidence of that status could not be introduced by a defendant employer in a wrongful death action filed against it by the common-law widow of the deceased worker.  Accordingly, the court let stand a $1.4 million judgment against the former employer.  The employer had exercised its right not to secure workers' compensation coverage for its employees under Texas law.   The widow filed the civil action, contending in relevant part that the employer's negligence caused her husband's death, that the deceased was 21 years old, earned approximately $33,000 per year and would likely have worked for as many as 35 to 40 years.  The employer countered that the deceased would have been subject to deportation because of his illegal status, that it was speculative to consider his earning power to be equivalent to that of a U.S. citizen.  The appellate court indicated that it was actually speculative to assume the deceased would have been deported.

FREE VERSION: Access the case on lexisONE free case law. Click on tab for Free Case Law. Click on the radio button for Search by Citation. Enter this citation: 2011 Tex. App. LEXIS 540. Then click on the red button Search for Free. Note: If you haven’t registered for free at lexisONE, you will be prompted to do so in order to access the free case law.

FULLY FEATURED VERSION: Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 66.03.

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WY: Tort Action Against Co-Worker Who Fell Asleep While Driving is Barred by Exclusivity

The Supreme Court of Wyoming recently the court found that defendant's admitted negligence in falling asleep while driving simply did not rise to the level of misconduct envisioned by the exception to immunity in the Wyoming Worker's Compensation Act, Wyo. Stat. Ann. § 27-14-104(a) (2009). While there certainly was some possibility of defendant falling asleep and causing an accident, the court could not say that he intentionally acted to cause physical harm to plaintiff, or that the.

FREE VERSION: Access the case on lexisONE free case law. Click on tab for Free Case Law. Click on the radio button for Search by Citation. Enter this citation: 2011 Wyo. LEXIS 9. Then click on the red button Search for Free. Note: If you haven’t registered for free at lexisONE, you will be prompted to do so in order to access the free case law.

FULLY FEATURED VERSION: Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 111.03.

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LA: Annual Sick Leave Not Included in Computation of Hourly Worker's AWW

Affirming a decision by a state intermediate appellate court, the Supreme Court of Louisiana recently held that annual and sick leave is not included within the calculation of an hourly employee's average weekly wage for purposes of determining the appropriate workers' compensation benefit. When a claimant is paid on an hourly basis, and his or her average weekly wage is calculated using La. R.S. 23:1021(12)(a)(i), fringe benefits in the form of annual and sick leave are already included in that calculation.

FREE VERSION: Access the case on lexisONE free case law. Click on tab for Free Case Law. Click on the radio button for Search by Citation. Enter this citation: 2011 La. LEXIS 20. Then click on the red button Search for Free. Note: If you haven’t registered for free at lexisONE, you will be prompted to do so in order to access the free case law.

FULLY FEATURED VERSION: Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 93.01.

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CA: Attendant Care Award of $1.5 Million Overturned; Inappropriate Ex Parte Communications Between Attorney for Claimant and Caregiver with Medical Evaluator

A California appellate court recently held that the act of contacting the appointed medical evaluator, without prior notice to the employer or carrier, and providing the medical expert with what the employer contended were incomplete medical reports violated the prohibition against ex parte communications in the state's workers' compensation regulations.  The violation required the disqualification of the examiner and the striking of the examiner's reports and testimony.  Moreover, an award of some $1,520,640 to an attendant care giver was excessive, based as it was on a rate of $30 per hour, seven days a week, 24 hours a day.  Some of the services might have been medically necessary and reasonable, but not at an LVN hourly rate; other services provided by caregiver did not appear to have been medically necessary, and were not services that Cal Labor Code § 4600, subdivision (a) required the employer to provide or for whose expense the employer was liable.

FREE VERSION: Access the case on lexisONE free case law. Click on tab for Free Case Law. Click on the radio button for Search by Citation. Enter this citation: 2011 Cal. App. LEXIS 86. Then click on the red button Search for Free. Note: If you haven’t registered for free at lexisONE, you will be prompted to do so in order to access the free case law.

FULLY FEATURED VERSION: Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 127.05.

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KY: Settlement Agreement Not Final Where Reference Was Made to Medicare Set-Aside Allocation, But No Allocation Made

The Supreme Court of Kentucky recently determined that correspondence between the claimant's attorney and an insurance adjuster did not show the existence of a settlement agreement between the parties where the same correspondence indicated that the claim was to be settled for a lumps sum amount and that there was to be an allocation for a Medicare Set-Aside Account, but no such allocation was made.  The court reasoned that the allocation was an essential part of the settlement between the parties.

FREE VERSION: Access the case on lexisONE free case law. Click on tab for Free Case Law. Click on the radio button for Search by Citation. Enter this citation: 2011 Ky. LEXIS 8. Then click on the red button Search for Free. Note: If you haven’t registered for free at lexisONE, you will be prompted to do so in order to access the free case law.

FULLY FEATURED VERSION: Lexis.com subscribers can read the fully featured case here. See generally Larson's Workers' Compensation Law, § 157.03.

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Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law